Conflict Resolution

Advanced Problem-Solving Strategies

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An article in the Harvard Negotiation Program newsletter (summarized here) reflects a common view that mediation and arbitration need to be “sold” more as an alternative to litigation.  In this view, it is seen as a problem that parties to business contracts often do not anticipate the likelihood of conflicts arising in the course of their relationship, and therefore fail to include as often as perhaps they should, clauses providing for alternative dispute resolution in the event of problems.  Because parties fail to anticipate the potential need for ADR, litigation becomes the default alternative when a conflict occurs. This way of looking at a problem–here the problem of choosing a method of resolving disputes–itself reflects a view of the world […]

This week, the Franken amendment to a Defense appropriations bill became law, forbidding most defense contractors from using mandatory arbitration clauses in their employment contracts. I have written about this subject on my law firm blog site previously. This legislation is part of a larger, continuing trend towards the elimination of mandatory arbitration in virtually all employment and consumer disputes. People in the ADR community may be concerned about this trend, but I think we should applaud it. The US Supreme Court in recent years went very far in the direction of upholding the enforceability of mandatory pre-dispute arbitration clauses (in contrast to the approach of the state courts in California for example). As a result of the inevitable backlash […]